Tag: FMLA

As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A. This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018. The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.). The summary must include the total number of job-related injuries and illnesses that occurred in 2017.

Areas to remember:

Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.

What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300. The information posted should also include the number of employees and the hours they worked for the year. No recordable illnesses or injuries? However, an organization must still post the form, with zeroes on the appropriate lines.

“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]

As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration. Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law. Public sector rules will vary as well. If you have questions, seek guidance. Safety rules and regulations can be complex, just as HR laws and regulations are.

A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies. As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.

Below are 5 areas to watch related to employee handbooks:

Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer). Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.

Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements. These decisions can impact our organizations. I have not implemented arbitration agreements. However, they are growing in popularity.

Sexual Harassment/Harassment Policies: This speaks for itself. California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently. Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures. Organizations need to be proactive and not reactive to issues.

Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change. The state has a website full of information to utilize as we move forward in 2018.

Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana. Medical marijuana law(s) continues to evolve. “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]

As laws continue to evolve, now is the time to review handbooks, policies and procedures. If you are unclear on a path-forward or what to look for, seek guidance. Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.

2018 IRS Mileage Rate:

“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:

5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.

18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.

14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]

As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.

Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.

Occasionally, an employee will request access to their personnel file during the employment relationship or after departing from the organization. What are our legal obligations in providing this information to current or former employees? There is currently, “no federal law that requires private employers to provide employees access to their personnel files, but there are many state laws that do grant access.”[i] The answer varies, based on state specific laws and regulations. What does that mean for employers in New York State? Currently there is no law in New York State which permits an employee to examine his or her personnel file. There is currently an amendment in the New York State Senate to provide public and private employees the right to review personnel files, the bill is in Committee and was proposed initially 2013-2014 and is now being proposed again in 2017-2018. However, Pennsylvania allows an employee to inspect certain information from their own personnel files maintained by an employer. Below are websites for New York State, Pennsylvania and the Society of Human Resources Management:

Again, laws vary state by state. If you are a multi-state employer, research the specific laws and regulations and be consistent with employees. Remember to look for (.Gov) or credible website sources, when searching for current state laws and regulations. If you are required to provide access to employees on all or certain personnel file information, ensure you have a policy in place that is fair and consistent to all employees.

Below is a correction to the draft communication letter, when communicating NYSPFL information throughout the organization. Correction underlined as regulation has changed, from $1.65 weekly maximum contribution to $85.56 annually:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions. The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits. The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92. The maximum contribution is currently $85.56 annually. For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week. For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92). We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018. If you have any questions please contact ____.”

In late July, I wrote a brief article regarding “6 Need to Knows About the New York State Paid Family Leave (NYSPF) Legislation” and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018. We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly. Continue to monitor for any changes that can and will impact your organization. As we approach 2018, we should begin communicating with employees about NYSPFL and the upcoming payroll deductions (if you haven’t started the deductions yet).

Below is a draft communication letter to consider when communicating NYSPFL information throughout the organization, which can also be used as a memo for a bulletin board or intranet/email message:

“Effective January 1, 2018, employees could be eligible for Paid Family Leave, as permitted under the New York Paid Family Leave Benefits Laws and Regulations. After this date, eligible part-time and full-time employees may take Paid Family Leave under certain conditions, including: (1) to care for a family member with a serious health condition, (2) to bond with a child after birth or placement for adoption or foster care within the first 12 months after the birth or placement, or (3) because of any qualifying exigency arising from the fact that an employee’s spouse, domestic partner, child or parent is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.

Paid Family Leave will phase in over 4 years with a gradually increasing benefit amount and duration, as shown below:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions. The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits. The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92. The maximum contribution is currently $1.65 each week. For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week. For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92). We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018. If you have any questions please contact ____.”

Other considerations for NYSPFL Communication Letter and/or Policy:

Dates for deductions and payroll processing

Concurrent use with Family Medical Leave (remember FMLA varies in coverage)

Concurrent use of vacation and/or other paid time off

Eligibility, job protection and benefits protection regulations

Provider information, certification forms and submission processes

Approval and denial information

Additional organizational considerations for NYSPFL:

FMLA policy updates

Handbook updates

Labor and employment law posters/legal communication

The letter is designed for proactive communications. As laws and regulations evolve, the letter/communication tools will also change. Organizations should consider developing a frequently asked questions list, to assist employees in better understanding NYSPFL laws.

I have written about New York State Paid Family Leave three or four times over the past 8 months, and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018. We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly to employers and insurance companies. Continue to monitor for any changes that can and will impact your organization.

Below are 6 Need to Knows about NYSPFL as we approach 1/1/2018:

Employer Eligibility: Qualifying reasons for leave under current PFL include; bonding with a new child (birth, adoption or placement in foster care), employee providing care for a child, parent, grandparent, grandchild, spouse or domestic partner with a serious health condition and qualifying exigencies arising from military services of the employee’s spouse, domestic partner, child, or parent. Serious health condition or qualifying exigencies, follow the same guidelines that we see under the Family Medical Leave Act (FMLA)

New York State’s Average Weekly Wage: The current average weekly wage is $1,305.92. On March 31st of each calendar year, the rate is recalculated by the New York State Department of Labor. More than likely, we will see this rate continue to increase year over year.

Employer’s Obligation to Fund Paid Family Leave: “Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits. Paid family leave is intended to be 100% employee-funded.”[i] The Worker’s Compensation Board has yes to publish all rules in this area, continue to monitor for additional updates and new guidelines.

Maximum Deductions: The most that can be deducted is 0.126% of the New York State average weekly wage. This will be for an employee’s weekly wage.

Insurance or Self-Insure: The employer can forego obtaining insurance and has the option to self-insure. Currently, the employer must elect to do so and file the required paperwork with New York State, no later than September 30, 2017.

Employer’s Offering Benefits That Exceed NYSPFL: If an employer is already offering paid family leave that exceed the legal requirements and pay full salary during leave, the employer may request reimbursement from the insurance carrier for advance payment of benefits. The employee is not entitled to add-on or double dip NYSPFL or short-term disability. Benefits are limited to a total of 26-weeks; paid family leave and disability.

As we approach January 1, 2018, continue to watch for updated rules and regulations from the New York State Worker’s Compensation Board. There are still unanswered questions and areas of the legislation that need to be clarified. Organizations should now be working with insurance companies or determining if they would like to be self-insured. Do not wait until the last minute to begin implementing, taking deductions or communicating with the workforce. The law is complex, seek guidance if you are confused.

As we move closer to 2018, the regulations on the New York State Paid Family Leave Law will continue to be communicated from the state. On June 1, 2017, the state released the maximum employee contributions. This will be the average deduction that will be taken out of the employee’s paycheck.

Below are the 3 updates:

Clarification on the payroll deductions and employer portions. This clarification is not new. However, I have been asked about the employer portion many times. The paid family leave “is intended to be funded entirely through employee payroll deductions and employers are not required to fund any portion of this benefit.”[i]

The maximum employee contribution was set at 0.126% on June 1, 2017, of an employee’s weekly wage, up to and not to exceed 0.126% of the NY statewide average weekly wage. The current statewide wage is $1,305.92. “So, for example, if an employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for PFL would be $1.26 for that week.”[ii] If any employee makes more than $1,305.92, the weekly amount will be capped at $1.65. Multiply the 0.126% by the wage to calculate the deduction.

The statewide average weekly wage is calculated annually on March 31st and will be based on the previous calendar year’s average weekly wage. As wages increase across the state, so will the paid family leave contribution deductions, out of the employee’s paycheck.

As new information is released, I will send a breakdown of the regulations. Now is the time to begin reviewing, drafting, updating and revising policies and procedures related to FMLA and Paid Family Leave. January 1, 2018 is only six short months away. If you are confused, ask questions and do not assume. This law is very complex, it continues to change as new regulations are slowly released.

The New York State Worker’s Compensation Board issued five proposed regulations on May 24, 2017, for organizations to incorporate, when implementing the New York Paid Family Leave requirements on January 1, 2018. The initial regulations were published on February 22, 2017 and included a comment period. The new regulations released on May 24, 2017 will have a 30-day comment period.

Below are 5 proposed regulation changes:

An employee using intermittent leave must give the employer separate notice each day of use of the Paid Family Leave. Previous language stated that employees only needed to provide notice once to employers when using intermittent leave, which was inconsistent with the FMLA rules.

Collective bargaining language must provide benefits as favorable as the Paid Family Leave law, including the length of leave and amount of pay. This section is still evolving and negotiated language can include the union responsibility for time records and pay deductions. This has not been finalized and more changes will come to this section.

Paid Family Leave language has been clarified that the eligibility of employees working 20-hours or more per week is measured based on the number of weeks in employment, which must be at least 26-weeks. Employees who work less than 20-hours per week is measured in days, which must be at least 175 working days.

The Worker’s Compensation Board clarified the July 1, 2017 deductions language. The employer can start taking payroll deductions on July 1, 2017, but cannot take deductions more than the maximum weekly contribution to retroactively cover the cost of providing Paid Family Leave. The reason for early deductions is to offset the cost of acquiring the mandated insurance policy.

The Worker’s Compensation Board issued additional guidance on accrued leave running concurrently with Paid Family Leave. The complexity of this language and requirements is related to accrued leave is still being drafted. Further clarification is needed from the Board on the concurrent and accrued requirements, which include; FMLA, worker’s comp, and disability. More updates to come on this proposed language.

Now is the time to begin reviewing, drafting, updating and revising policies and procedures related to FMLA and Paid Family Leave. January 1, 2018 is only six short months away. Continue to monitor for updates and changes to the proposed language. If you are confused, ask questions and do not assume. This law is very complex, it continues to change as concerns arise and the implementation will impact most organizations throughout New York State.